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Supreme Court, Appellate Division, First Department, New York.

Jose DOMINGUEZ, et al., Plaintiffs-Appellants, v. LAFAYETTE-BOYNTON HOUSING CORPORATION, et al., Defendants-Respondents.

PROTO CONSTRUCTION AND DEVELOPMENT CORP., etc., Third-Party Plaintiff-Respondent, v. SUN CONSTRUCTION CO., Third-Party Defendant-Respondent. [And Another Action].

Decided: June 24, 1997

Before ELLERIN, J.P., and WALLACH, RUBIN and MAZZARELLI, JJ. Joseph C. Fegan, for Plaintiffs-Appellants. Anne R. Mahoney, for Defendants-Respondents. Steve S. Efron, for Third-Party Plaintiff-Respondent. Victor A. Vincenzi, for Third-Party Defendant-Respondent.

Order, Supreme Court, Bronx County (Anne Targum, J.), entered April 5, 1996, which granted third-party defendant Sun Construction's motion for summary judgment dismissing plaintiffs' Labor Law 240(1) cause of action, granted defendant Lafayette-Boynton Housing Corp.'s and defendant/third-party plaintiff Proto Construction's cross-motions for the same relief, and denied plaintiffs' cross-motion for summary judgment on that cause of action, unanimously reversed, on the law, without costs, the motion and cross-motions seeking dismissal of the Labor Law 240(1) cause of action are denied, and plaintiffs' cross-motion for summary judgment on that cause of action is granted.

Plaintiff Jose Dominguez was injured on April 6, 1991 while working on a scaffold at 825 Boynton Avenue, a 25-story building in Bronx County “(building”).   Plaintiff was employed as a bricklayer by third-party plaintiff Sun Construction (“Sun”).   Sun had been hired by defendant Proto Construction and Development Corp. (“Proto”), a general contractor, to reface the building.   Defendant Lafayette-Boynton Housing Corporation (“Lafayette-Boynton”) was the owner of the building.

On the date of the accident, plaintiff and a co-worker were working on a scaffold suspended from the roof of the building by ropes.   The scaffold was equipped with an electric motor which enabled it to be raised and lowered along the face of the building by the workers.   The scaffold also had guard rails along the ends, and the side furthest away from the building, but not on the side closest to the building.   Plaintiff and his co-worker were assigned to replace bricks on the 19th floor, which required them to raise the scaffold to that level.   However, on the 5th floor, an air conditioning unit protruding from the building obstructing the path of the scaffold.   To avoid the air conditioner, plaintiff and his co-worker turned their backs to the building face, placed one foot backward against the wall and pushed the scaffold outward three feet.   They then used the motor to propel the scaffold around and above the air conditioner.   They accomplished this maneuver twice during the day before the accident occurred.   When they attempted it a third time, with the scaffold weighted with bricks and cement, the scaffold swung back precipitously and smashed into the air conditioner, causing injuries to the plaintiff's wrist.

On August 7, 1992, plaintiffs commenced this action for personal injuries against Lafayette-Boynton and Proto alleging, inter alia, violations of Labor Law 240 and 241.   In March 1993, Proto commenced a third-party action against Sun. After significant discovery, Sun moved in August 1995 for partial summary judgment seeking dismissal of plaintiffs' causes of action under Labor Law 240 and 241.   Subsequently, Proto and Lafayette filed cross-motions seeking the same relief.   In October 1995, plaintiffs opposed the defendants' motions, and cross-moved for summary judgment on its Labor Law 240 cause of action.

The IAS Court granted summary judgment to the defendants on plaintiffs' Labor Law 240 cause of action.   The court held that plaintiff's accident was not within the “special hazards” contemplated by that section, since those hazards are limited to “specific gravity related accidents such as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured.”

 We reverse and grant plaintiffs' cross-motion for summary judgment on their Labor Law 240(1) cause of action.   In Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219, 583 N.E.2d 932, the Court of Appeals stated that the hazards contemplated by the statute are “those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured.”   The Rocovich Court further stated that several of the protective devices enumerated in the statute, such as a scaffold, “are for the use or protection of persons in gaining access to or working at sites where elevation poses a risk” (id. at 514, 577 N.Y.S.2d 219, 583 N.E.2d 932).

 Plainly, the work being performed by the plaintiff in this case fell within the statute's protection.   The plaintiff was on a scaffold 5 stories high at the time of the accident, while attempting to gain access to a work site on the 19th floor.   Further, the statutory requirement that the safety devices be “so constructed, placed and operated as to give proper protection” (240[1] ) to the worker, was compromised by the obstruction posed by the protruding air conditioner.   Additionally, the plaintiff offered evidence in the form of an expert's affidavit that this accident was gravity-related, and defendants offer no persuasive argument to the contrary.

Relying on the Court of Appeals decision in Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82, defendants assert that the special hazards covered by the statute “do not encompass any and all perils that may be connected in some tangential way with the effects of gravity,” but rather “are limited to such specific gravity-related accidents as falling from a height or being struck by a falling object” (emphasis added).   Narrowly construing this language, defendants argue that since plaintiff neither fell nor was struck by a falling object, the statute is not applicable.

 We do not read the statute so narrowly.   We recently stated that an injured person need not fall completely off a scaffold to recover under Labor Law 240(1) so long as the injury resulted from an elevation-related hazard (Prekulaj v. Terano Realty, 235 A.D.2d 201, 202, 652 N.Y.S.2d 10, 12;  see also, Gramigna v. Morse Diesel, 210 A.D.2d 115, 620 N.Y.S.2d 58).   While liability under the statute does not extend to other types of harm even if the injuries are caused by the defective safety device, it does apply where the device “proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or a person” (Ross v. Curtis-Palmer Hydro-Elec. Co., supra at 501, 601 N.Y.S.2d 49, 618 N.E.2d 82).   Since the effects of gravity caused the scaffold to smash into the air conditioner, and the scaffold was not equipped with sufficient devices to prevent these injuries, plaintiffs' motion for summary judgment should have been granted.

It is unnecessary to address plaintiff's additional argument that defendants also violated Labor Law 240(2).   Plaintiffs never alleged such a cause of action.   In their complaint, plaintiffs alleged a single violation “Labor Law 240,” without specifying any subsection.   However, the language supporting that cause of action refers only to the requirements of subsection one (“defendants ․ failed to construct, place and operate the aforesaid scaffold ․ so as to provide proper protection to [p]laintiff”), and makes no mention of subsection two's requirements that the scaffold be equipped with safety rails on three sides, and be adequately fastened.   Plaintiffs first raised these latter requirements in their papers seeking summary judgment.   We decline to grant relief not requested in the complaint.